POLITICAL PARTIES DON’T SUSPEND MEMBERS CHARGED WITH SEXUAL OFFENCES – EVEN WHEN CHARGED WITH RAPE AGAINST CHILDREN

CASE 4: Unnamed ANC Councillor, JS Moroka Municipality

In May of this year an unnamed ANC councillor was accused of raping a 16-year old girl. He was released on bail of R5 000 by the Mdutjana Magistrate’s Court in Siyabuswa, Mpumalanga and the next court date set for 23 June. Rather than suspending the councillor, the ANC in the Nkangala region chose to place him on special leave pending the outcome of the case. Spokesperson Sello Matshoga indicated that the councillor would only have been suspended if the state had succeeded in opposing bail and presented evidence in court of a strong case. No further information about the progress of this case is available.

ANC is inconsistent in its approach

“The ANC is inconsistent in its stance towards members who are accused of sexual offences,” said Lisa Vetten, a gender violence specialist. “On Monday 27 #NotOurLeaders highlighted the case of Winterveldt councillor Sipho Maselane who is appearing in the Ga-Rankuwa magistrates court today (30 November) on multiple counts of rape and robbery. He has neither been suspended, nor placed on ‘special leave.’ We’ve also highlighted how the ANC acted against Marius Fransman even though the criminal investigation had not been concluded,” she said.

Another very recent example is Simon Mofokeng, the mayor of Emfuleni who distributed pictures of a semi-nude 14-year old girl to other ANC leaders via WhatsApp in October of this year. Although Mofokeng has not been formally charged with a criminal offence yet, he was placed on ‘special leave’ on 30 October and an internal investigation launched into the matter. Although Mofokeng resigned on 20 November he is not necessarily off the hook, as the ANC is reported to be still considering further disciplinary action against him.

Reluctance to suspend party members accused of sexual offences is evident across parties

The ANC is not the only party to take the path of least resistance when confronted by party members charged with sexual offences.

“On Tuesday #NotOurLeaders highlighted the case of a deputy mayor, Mncedisi Maphisa, who has been charged with sexual assault. He has not been suspended or placed on special leave by the IFP. In yet another example a DA councillor from Clanwilliam in the Western Cape was accused in March of sexually assaulting a 13-year old girl and arrested. The DA also said they would not suspend him until the criminal case has been concluded. They’ve since been able to duck the issue as the councillor had not paid his membership fees and is therefore no longer a member of the DA,” said Sanja Bornman of Lawyers for Human Rights.

“Criminal charges are serious. It’s unacceptable that parties claim – and only in some instances – that they must wait for the outcome of a criminal trial before they can act. This is a cop out. They are not powerless to act,” says Vivienne Mentor Lalu of the Women and Democracy Initiative. “Legally, there is no requirement to wait. In fact, political parties (like employers) should run internal processes as soon as they are aware of the allegations against their members regardless of the criminal justice process. That would show that they are serious about addressing sexual violence.”

The ANC must act

The #NotOurLeaders campaign calls on the ANC to provide further information on the progress of the case against the Mpumalanga councillor.

We also call on the ANC make clear its position on the processes to be followed when a member is accused of a sexual offence. A statement must be issued in this regard and every effort made to ensure that this policy is routinely and consistently applied.

#NotOurLeaders reiterates its call to immediately suspend Sipho Maselane and undertake an internal disciplinary investigation of his conduct. The national office should also investigate the Tshwane ANC’s handling of Maselane’s matter.

All parties must act

The #NotOurLeaders campaign challenges all parties to develop procedures for suspending political representatives accused of sexual offences.

During this year’s 16 Days of Activism, the Women and Democracy Initiative (WDI) of the Dullah Omar Institute at the University of the Western Cape, Lawyers for Human Rights (LHR), and gender violence specialist, Lisa Vetten, turn the spotlight on political representatives accused of sexual violence and the practices that protect and enable their sexual misconduct and abuse. By contrasting the range of incidents reported with parties’ inconsistent – even non-existent – responses, the campaign aims to demonstrate the chasm between political-speak and political actions on sexual violence.

The campaign emphasises the need for strong political leadership by all political parties and representatives in tackling the pervasive problem of sexual violence in South Africa.

CRIMINAL CASES AND INTERNAL DISCIPLINARY ACTION

Criminal trials and disciplinary actions are separate processes, with different purposes and levels of proof needed. This is why withdrawal of charges, or an acquittal in a criminal court does not always mean an incident did not happen. It means that the state could not prove beyond a reasonable doubt that it happened. The purpose of an internal disciplinary process, in most cases, is to maintain behavioural standards and create a safe working environment – which employers are required by law to do. The onus of proof is lower in internal disciplinary processes than it is in criminal trials. In these processes the case must be proved on a balance of probabilities – so they look at what is more probable. Internal disciplinary processes can and should run at the same time that a criminal trial is running. They also can and should be run, when the allegations constitute misconduct, even when there is no criminal case.

The recently released crime statistics indicate a slight drop in the number of reported cases of sexual offences, from 66 387 in 2012/13 to 62 649 in 2013/14. Over the course of the past few years, the trend has been to drop, then increase again and then drop again at different points in time. In 2004/05, for example, there were 69 117 reported cases. By 2007/08, this had dropped to 63 818. In 2008/09, it increased again to 70 514, dropped to 64 514 in 2011/12 and then increased to 66 387 in 2012/13.

The pattern that emerges is not one of a steady decline as a result of a coherent, targeted strategy to eradicate sexual offences. Equally concerning, is the fact a small fraction of the total number of reported cases eventually go to court. In 2007/08, 6.8% of the total number of sexual offences went to court. Of the total number of cases reported to the police, 4.5% resulted in convictions. This improved marginally in 2008/09, when 7.5% of the total cases reported went to court and 5% of the total cases reported resulted in convictions. For the next two years, there was no reporting on the related statistics. In 2011/12, there was a marginal improvement with 10.7% of the total number of reported cases going to court and 6.97% of the total cases reported resulted in convictions. The subliminal message is abundantly clear – a rapist has to be extremely unlucky to get convicted.

The reasons for the vast majority of sexual offences cases not going to court varies. Some cases are eventually withdrawn by the victim, largely as a result of secondary victimisation in the criminal justice system. In other instances, the National Prosecuting Authority will drop a case if it seems as if though there is not enough evidence to support it. This is a contentious matter as forensic evidence is an important part of deciding whether or not a case can potentially be won in court. Yet, there are significant delays in securing forensic evidence and even where it is secured, the accused can argue that sex was consensual.

We need new strategies

The fact that there is no coherent, inter-departmental strategy on the part of the state to deal with rape is one of the main reasons why we see no real improvement in addressing the issue of rape.

Much of the state and media discourse in this regard has focused on the notion of protectionism, namely, that women need to be kept safe from harm and navigate their way cautiously in public spaces, particularly at night. Embedded within this narrative of danger is the underlying view that “bad” women ask for trouble, and that women who conform to the tacit rules of how to dress, where to walk, when to be out etc., will be “safe”. Restrictions on women’s mobility are therefore sanctioned by rationalizing that it is in the interest of their safety.

Yet, rape has confounded this myth. Even “good” women who conform to the rules have been raped and the disproportionate focus on the danger to women in public spaces appears to ignore the reality that women seem to face more violence in private rather than public spaces.

Furthermore, the language of protection and safety is couched within a problematic framework of concern for women’s sexual virtue. It obliterates the fact that the everyday acts of violence such as catcalls and comments directed at women on the streets are linked to more brutal forms of violence such as rape. These daily, repetitive acts of intrusion and harassment which women are expected to take in their stride, creates the kind of social context where more brutal forms of harassment can take place.

In the longer term, the better strategy is for women to enhance their claim to public spaces as notions of protectionism and keeping women safe ultimately limit life choices and restrict mobility. This in itself can be seen as a form of violence. In the process of doing this, violence is something that needs to be contended with and addressed at its roots, that of structural social inequity. This will require that we think differently about violence against women – placing it not in opposition to risk and pleasure, but alongside them and understanding what these terms mean in their own right and when connected to each other.

Walk: South Africa is a performance piece created by a group of women artists living in Cape Town, in response to Maya Krishna Rao’s The Walk. Rao crafted The Walk as a response to the gang-rape and murder of 23 year old Jyoti Pandey who was repeatedly raped and bludgeoned with an iron rod by 6 men on a bus in Delhi in December 2012. We decided, with Rao’s permission, to create Walk: South Africa in early 2013, as a response to the gang-rape and murder of Anene Booysen.

Our vision for Walk: South Africa is centred around a sparse aesthetic that foregrounds the figure of the woman. Its focus is very much on the six women performers and considering the unavoidable, physical fact of their bodies – a fact which we understand rape culture to seek to obfuscate or erase.

Venue: The Dragon Room, 84 Harrington Street, Cape Town

Dates:

25 September 2014 at 22.00
26 September 2014 at 22.00
27 September 2014 at 15.30
30 September 2014 at 16.00
01 October 2014 at 13.00

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The Women’s Legal Centre, People Opposing Women’s Abuse, the Teddy Bear Clinic for abused children, the Tshwaranang Legal Advocacy Centre to end violence against women and girls, and the GRIP Rape Prevention Programme are dismayed to learn of the reduced sentence for the perpetrator of multiple rapes of an 11 year old victim, in the North Gauteng High Court. The life sentence of Molefe Joseph Mphanama, who repeatedly raped an 11-year-old girl he regarded as “a daughter”, was reduced to 20 years on appeal by the High Court in Pretoria on 25 July 2014, because she seemed to be a “willing partner”.

The court accepted the state’s arguments that the young girl had been sexually groomed by Mphanama, but when it came to sentencing, acting Judge Mushasha stated that he was “concerned about the conduct” of the girl victim, which was a mitigating factor in favour of Mphanama. An example of this conduct cited by the Judge was that she opened the window for Mphanama, and “only” showed her unwillingness to have sex by closing her thighs. Judge Khumalo agreed with Judge Mushasha’s reasoning.

“It is of serious concern when the judge’s reasoning perpetuates the stereotypes around sexual violence that many organisations (and we hope government) are trying to dispel. It shows that the transformation of the judiciary requires more than increasing the number of women on the bench. It requires a transformation of the stereotypical paternalistic thinking which is entrenched in many of our male judges. This judgment shows how this kind of thinking severely infringes the rights of the girl child and removes the little trust she may have had in the judicial system to protect her. It is totally unacceptable,” said Shireen Motara, Director of the Women’s Legal Centre

“We are extremely concerned about this judgment, and believe it must be appealed. The reasoning employed by the court amounts to a species of victim blaming, and was pursued despite the absence of a victim impact statement,” said Sanja Bornman, attorney at the Women’s Legal Centre.

Barbara Kenyon from GRIP said, “We are outraged by the decision. The age of consent is 16 years, and children below 12 cannot consent to sexual contact with adults. The prosecution authority must appeal.”

Shaheda Omar of the Teddy Bear Clinic said, “The burden of responsibility here is being shifted to the child, where in actual fact it should be the responsibility of the adult to protect children. This is a clear case of exploitation, and child sexual abuse accommodation syndrome, which could account for a child victim’s secrecy, helplessness, entrapment and accommodation, delayed disclosure and retraction.”

Shereen Mills of the Tshwaranang Legal Advocacy Centre (TLAC) said, “After all the work women’s violence organisations have done to educate and eradicate patriarchal attitudes that blame the victim of rape for her rape, it is of extreme concern that this kind of deluded, discriminatory reasoning can be applied by our judiciary to the rape of an 11-year old girl child. The sexist stereotypes that underlie this judgment serve not only to reinforce women and girl children’s unequal status, but also to normalize men’s continued violence against the most vulnerable in our society.”

The following additional organisations endorse the call on the Director of Public Prosecutions to appeal the sentence:

Rape Crisis Cape Town Trust

Ekupholeni Mental Health and Trauma Center

Women and Men Against Children Abuse

Project Empower

Masimanyane Support Centre

TVEP

Justice and Women

Childline South Africa

MOSAIC

The Women’s Legal Centre has also started a public petition to call on the Director of Public Prosecutions to appeal the sentence, and members of the public can sign this petition electronically here.